July 12, 2010

The Modern Council of Revision

At the Constitutional Convention in Philadelphia in 1787, a few delegates proposed the adoption of a Council of Revision. The Council was to consist of a small group of high officials (mostly judges) whose job it would be to determine the constitutionality of any law under consideration by Congress. The purpose of the Council of Revision was to keep in check the dangerous excesses of popular majorities. In the end, cooler heads prevailed, and the Framers wisely rejected this proposal.

However, what we have today is an unstoppable U.S. Supreme Court fully determined to pass judgment on just about any significant Congressional enactment. Nearly every statute of consequence now has to meet the approval of a handful of these unelected, lifetime officials. The recently completed term of the Court is replete with examples of this -- most egregiously, the Citizens United case back in January which gutted the McCain/Feingold Campaign Finance Law, a law based upon extensive hearings and findings by Congressional committees. And a most important new piece of legislation, the Health Care Law, is being challenged by teams of conservative lawyers and state attorneys general who have every expectation that the Supremes will have lots to say about whether that Law is permissible or not.

Thus, for all practical purposes, we have allowed the old Council of Revision to become part of our system of government even though it was specifically rejected by the much venerated Founding Fathers. So much for the original intent of the framers of our Constitution.